Banned in Maine – presumptively!

One can only hope that the recently espoused Department of Environmental Protection philosophy to be used in determining which products to ban in Maine won’t spill over into the court system where the rule of law has always been innocent until proven guilty.

At a recent hearing before the Legislature’s Natural Resources Committee on a measure to ban products containing brominated flame retardants (BFRs), Dave Littell, a deputy DEP commissioner, acknowledged that there is “no demonstrated adverse effects on humans,” but suggested that they could be “banned presumptively.” The high state official reasoned that even though the health hazards are uncertain the state should “shift the burden of proof from government to manufacturers.”

This novel approach to environmental regulation did not fall on deaf ears in the committee.

“I really like that,” said Rep. Joanne Twomey, D-Biddeford.

Actually, Maine – or California for that matter – cannot lay claim to this “shoot first ask questions later” approach to environmental regulation. We’re told it was the brainchild of scientists in the European Union who initially labeled the tactic as “pre-emptive” regulation. Give Maine credit, “presumptively” is a fancier-sounding word.

At the hearing, there was irreverent speculation from business lobbyists that the department is being forced into “presumptive banning” because it is running out of after-the-fact products and practices to ban. Skeptics pointed to an earlier bill before the committee to ban button cell batteries, a product that even supporters agreed contained only minuscule amounts of mercury.

This groundbreaking approach to product banishment also provoked the question of why the department would want to take on new banning and recycling assignments when it recently confessed that its efforts to collect mercury-containing thermostats had been only 2 percent successful.

Could be that if a product is banned presumptively it would also be safe to presume that the banishment had been successful? Virtual reality? The department could simply presume success.

That being the case, why can’t sports fans simply presume the Red Sox will beat the hated Yankees in the seventh game of the ’04 American League playoffs, and let it go at that?

Indeed, the department’s push to assume more regulatory assignments in the face of questionable success in the enforcement of existing programs has surfaced from time to time in the committee. Also, state government’s ongoing budget deficit is deterring all departments – even DEP – from asking for new policing positions; a situation that caused one environmental advocate to suggest that enforcement in the future could be done through lawsuits – with winners being awarded lawyers’ fees and punitive damages; and the losers with – you guessed it – fines or banishment. That’s where the court thing alluded to at the outset would come into play.

State law enforcement through lawsuits? There’s another bold, new-age concept society hopefully will be able to forgo.

The whole thing causes one to wonder if presumptive banning is not a just a byproduct of the Maine Legislature’s seeming obsession with being No. 1, first-in-the-nation, in all matters involving the environment, energy, labor and health care, to name a few.

In the case of the flame retardants, Rep. Hannah Pingree, D-North Haven, the bill’s sponsor, declared that Maine should lead in this area because the “U.S. government is not leading.”

She pointed to California as a leader; but even that progressive state saw fit to wait until 2008 to have its statute become effective.

But, the idea may be catching on in other areas of the Maine Legislature. A few days after the presumptive banning theory was unveiled in Natural Resources, the Health and Human Services Committee was asked to recommend that Maine become the first state in the nation to dispose of expired drugs by having citizens clean out their medicine cabinets and mail the leftovers to a disposal site – rather than flush them down the toilet as position control centers have been advising. Seems that, among other things, the medications may be getting into ground water; but we’re really not sure at this point.

One bit of scientific data offered to support the theory was an article prepared by a professor at Baylor University. He reported finding a blue gill containing traces of the anti-depressant Prozac in a lake outside Dallas. The discovery set him to wondering whether the drug would make the fish less or more likely to nibble at a hook, or to breed. A couple of muffled snickers did interrupt the decorum of the Cross Office Building hearing room before an avid advocate admonished one and all that this is “not a laughing matter.”

The Maine Legislature’s quest to be No. 1 in this arena received at least a temporary setback when it was revealed that federal law and postal regulations prohibit the mailing of narcotics; something about them falling into the wrong hands, and author-ities not wanting white powders spilling out of packages in this tense post-9-11 era.

Not to be outdone by federal law, bill sponsors are asking U.S. Sen. Susan Collins to change postal regulations or secure a waiver so Maine can become the test case in this arena. If that fails, backers indicated they may attempt to get the medications included in municipal household hazardous waste collection programs; hiring an off-duty policeman to stand guard at the dumpster.

Look! Nobody said it was easy being No. 1.

“It’s not just this bill,” a harried business representative pleaded with the Health and Human Service Committee. “The Natural Resources Committee is already leading the pack by weighing a ban on button cell batteries that make dolls say ‘mama,’ as well as the flame retardants. Somebody has asked Utilities and Energy to make Maine the second state to require special energy-efficiency appliances. Then, there’s the development of that first-in-the-nation Dirigo Health Plan that businesses have to keep track of.”

Also, cautioned the business guy, with more and more state agencies regulating business through rule-making rather than lawmaking, “folks in the Maine business community sometimes have a hard time keeping up.” Lately, the recurring “we’re No. 1” rallies at the State House have been met with a mixture of pride and concern.

Perhaps it’s just a wild guess, but could a government attitude that presumes all businesses are bad until they – the businesses – prove otherwise have anything to do with Maine’s annual 49th or 50th national “business unfriendly” ranking? It’s just a thought.

Jim McGregor is executive vice president and director of government affairs for the 70-year-old Maine Merchants Association, a business advocacy group that represents more than 1,000 firms throughout the state.